New York Bill Clarifies Liability for Sexual Harassment by Lawmakers

Jimmy Vielkind

Originally published in The Wall Street Journal

ALBANY, N.Y.—A bill introduced Thursday aims to close a loophole that limits state liability for sexual harassment by elected officials.

The measure, authored by Assemblywoman Yuh-Line Niou and state Sen. Andrew Gounardes, would make it clear that aides to legislators, judges and other elected officials are employees of the state—not the people who hired them for their personal staff.

Such employees receive state paychecks and must follow state employment policies. But in a handful of recent instances in which employees sued the state on allegations of sexual harassment, lawyers for the Assembly and some state agencies have had the claims dismissed.

“It’s crazy to me,” Mr. Gounardes, a Democrat from Brooklyn, said in an interview. “There’s no reason state employees should be gaslighted like this by their employers.”

The federal antidiscrimination law, Title VII of the 1964 Civil Rights Act, excludes the personal staff of lawmakers from its definition of a covered employee. 

When Tori Burhans Kelly and Chloe Rivera, who were aides to Assemblyman Vito Lopez, sued the Assembly on allegations of sexual harassment, lawyers for the chamber successfully argued to have the suit dismissed.

The suit was refiled, and another judge ruled that the state, not just Mr. Lopez, could be held liable for his actions. Mses. Burhans Kelly and Rivera reached a combined $580,000 settlement to satisfy their claims against the state, Mr. Lopez and then-Assembly Speaker Sheldon Silver. Mr. Lopez died in 2015.

“Someone has to be held accountable, and somebody is ultimately in charge,” said Ms. Burhans Kelly, who now serves as Mr. Gounardes’ chief of staff. “And the state is that person.” 

Gov. Andrew Cuomo earlier this year signed into law a measure changing the standard for workplace harassment claims and banning the use of mandatory arbitration by employers. 

The new bill states that the state of New York should be considered an employer for any person serving on the staff of any elected official in the state.

A spokesman for Mr. Cuomo, a Democrat, said he would review the bill but supports additional measures to support victims. A spokesman for Senate Majority Leader Andrea Stewart-Cousins, a Democrat from Yonkers, said she would look to advance the measure when the Legislature convenes in January. A spokesman for Assembly Speaker Carl Heastie, a Democrat from the Bronx, said he would review the legislation.

Ms. Niou, a Democrat from Manhattan, said both she and Mr. Gounardes served as aides to other legislators before they were elected themselves.

“I think we have enough members now who were formerly staff who see these are things that need to be taken care of,” she said.